Is the A-G part of the solution?

By Tan Wah Piow

The speech by the Singapore’s Attorney-General Mr V K Rajah at the Opening of the Legal Year 2016 is not one which would attract my attention except that this being the first Lee Kuan Yew-free legal year, I was curious to find out what he had to say.

Speaking at the Supreme Court auditorium on the 11th January he said (that) “Criminal law must not be enforced for its own sake, but for the greater good of society. It is an area in which I have done much thinking and reflection over the past year”.

That sounded promising as a starter.

After all, only a few weeks ago his office was publicly ridiculed in the High Court for handing out “stern warnings” which had no legal effect.  Was that at the forefront of his thoughts?

The A-G did in his speech made reference to “issuing advisories or proceeding on reduced charges”, but that was raised in passing merely as part of his framework for dealing with less serious crimes. It was unfortunate that the A-G failed to use the occasion to make a public apology for getting the law woefully wrong with the administration of “stern warnings”. If he had done so, it could be a signal of a new era.

The focus of his entire speech was on the future direction of the prosecuting authority.  He introduced what appeared to be forward-looking ideas. He talked about ‘community sentences’, and that ‘dependants should not be condemned to a vicious cycle of deprivation, desperation and crime’. He also raised the issue of how the authorities should ‘intervene early in the lives of vulnerable youths to prevent them from turning to crime’. One of his new initiatives includes the use of video recording ‘to improve the accuracy and reliability’ of what an accused person said during police custody. These are laudable propositions. What surprises me is that these were mooted as new ideas when they are already the norms in the United Kingdom criminal justice system.

When the A-G said that their prosecutors are now “thoroughly familiar with the letter and the spirit of their disclosure obligations both under the Criminal Procedure Code and the common law”, I was wondering why it took 50 years for prosecutors in Singapore to grasp this concept? Disclosure is a formal process whereby the prosecution serves to the defence documents they intend to rely on at trial, as well as unused documents relating to a case which might or might not help the defence.

That is a real revelation! What happened during the ‘dark ages’ when there were no disclosures, I wonder. Why is the administration of the criminal system in Singapore falling so far behind the progressive practices in the United Kingdom?

Whatever the past shortcomings, I am glad that the A-G is moving in the right direction. But is this the new dawn of Singapore’s criminal administration system? I doubt.

The fact that the word justice appeared 17 times in the A-G short speech does not make the administration of crime just and fair.

Firstly, there cannot be a proper criminal justice system without a free press. Secondly, there will not be any public confidence in a system if any criticism of the judiciary potentially attracts the charge of scandalizing the court. Thirdly, there can be no equality in access to justice without a universal non-means tested legal aid scheme. And most importantly, if fundamental constitutional rights are regarded by the establishment merely as “aspirations”, Singapore can only claim to have a system for the administration of criminal cases, and not a Criminal Justice System.

For this reason, I don’t share the enthusiasm of Thio Shen Yi, the president of Singapore Law Society who hailed the A-G as having ‘planted a flag for justice on the high ground’.

For those who feel I have overstated my case, let us remind ourselves that in a democracy, protecting the rule of law, and ensuring that the government is shackled by the Constitution is the job of the A-G.  Unfortunately, the common perception is Singapore is ruled by law.

Instead of developing his thoughts over these big post-LKY era issues which are within his constitutional remit and duty, the A-G raised a sound bite in his speech which is probably more appropriate for a politician than a civil servant. He stressed that “a society that is tough on crime must also be tough on the causes of crime.”

With due respect, causes of crime are important politico-sociological issues which might be beyond the A-G’s professional competence. Perhaps the A-G was not aware that it was Tony Blair, who in 1993, first coined the expression, and repeated it the following year at the Labour Party conference in Blackpool as the new leader of the opposition party: ‘We need a new approach, one that is tough on crime and tough on the causes of crime.’ That declaration, unsurprisingly, turned out to be empty rhetoric once Labour came into power under Tony Blair’s leadership.

A more appropriate slogan is for the AG is: tough on any transgression of the constitution, and tough on the causes of those transgressions.